In a big victory for the embattled Klamath River, Judge William Alsup of the United States District Court for the Northern District of California on Friday rejected PacifiCorps’ request to throw out the Klamath dams toxins case filed by the Klamath Riverkeeper. The lawsuit alleges that toxic blue-green algae thrives and settles in the reservoirs above PacifiCorp’s dams, creating a toxic environment for salmon and endangering human health. Renowned environmental attorneys Joseph Cotchett and Robert F. Kennedy Jr. will continue to argue the case against PacifiCorp, a company owned by Warren Buffet's Berkshire Hathaway Corporation.

Joseph Cotchett and Robert Kennedy will continue to argue case against PacifiCorp

A federal judge ruled on Friday that a nuisance case against PacifiCorp can go forward. The claim filed on behalf of a group of Klamath Basin residents alleges that PacifiCorp’s Klamath River dams produce toxins that endanger plaintiffs’ economic well being and way of life. The ruling came as a result of PacifiCorp’s attempt to have the case dismissed.

“PacifiCorp’s attempt to rob Klamath residents of their right to a day in court has failed. This ruling means that PacifiCorp will stand trial accused of poisoning our river and thereby destroying the livelihoods and rights of Tribal members, fishermen and business owners,” according Regina Chichizola of the Klamath Riverkeeper, a non-profit plaintiff in the case.

Several Yurok and Karuk Tribal members, a Klamath River business owner, a Pacific Coast salmon fisherman, and Klamath Riverkeeper sued PacifiCorp on May 2, 2007 for damages resulting from the toxic water conditions that PacifiCorp’s dams create. The groups cited risks to human health as well as a decline in the salmon fishery.

No tribal government is involved in the suit.

Friday, Judge William Alsup of the United States District Court for the Northern District of California rejected PacifiCorps’ request to throw the case out. He also rejected PacifiCorp’s request to delay the case while FERC completes the highly contentious dam relicensing proceedings that have been ongoing since 2004.

According to plaintiffs’ complaint, PacifiCorp has caused damages to the individuals by creating toxic conditions in the reservoirs and the entire Lower Klamath. Specifically, the suit alleges that toxic blue-green algae thrives and settles in the reservoirs above PacifiCorp’s dams, creating a toxic environment for salmon and endangering human health. According to plaintiffs, when the algae and its toxic by-products flow downstream, it threatens not only their livelihoods but their way of life. They allege that PacifiCorp has decimated the Klamath salmon fishery, dissuaded tourism and other recreational uses of the river, and seriously impeded tribal religious ceremonies, most of which are river-based.

Attorney Niall McCarthy, a partner of the law firm of Cotchett, Pitre & McCarthy who argued for the plaintiffs, haled the order as “sending a clear message that PacifiCorp cannot willfully and knowingly risk its downstream neighbors’ health, livelihoods and way of life and hide behind FERC when the time comes to compensate its victims.”

“Tribal residents on the Klamath River have the right to perform religious ceremonies and fish. PacifiCorp’s dams have devastated the Tribes’ traditional food supply and economy. People conducting religious ceremonies should not have to worry that they could end up sick if they touch the Klamath River,” said Chichizola, while noting the Klamath Riverkeeper has many tribal fishermen as members.

Although Judge Alsup found that the Federal Energy Regulatory Commission (FERC’s) authority over dam relicensing precluded an injunction directing PacifiCorp to modify its dam operations, he also ruled that claims for money damages against PacifiCorp could go forward. In addition, he rejected PacifiCorp’s contention that under California law, the FERC permit precluded nuisance claims, finding that the FERC license “cannot be read as to go so far as to demonstrate ‘an unequivocal legislative intent to sanction a nuisance.’”